INTRODUCTION
On 3rd April, the Indian Parliament approved the Competition (Amendment) Bill 2023 which proposes significant changes to India’s competition law regime, seeking to introduce substantive, procedural and institutional changes to the Competition Act, 2002. The Bill will enable the Competition Commission of India (CCI) to tackle today’s competition issues.
Important changes in merger control and competition enforcement are set out below:
Merger Control
- Deal Value Thresholds: To capture combinations in the digital and infrastructure sector (where targets usually do not have a substantial asset or turnover base), the Bill expands the CCI’s merger control mandate by introducing a deal-value threshold. Deals exceeding INR 2,000 crores in value with the target entity having ‘substantial business operations’ in India, will need to notify the transaction to the CCI even if they do not otherwise meet the existing asset and turnover thresholds under the Competition Act.
- Amendments on the definition of control: The Bill has codified the lowest standard of control, i.e., “material influence”. However, the amendment does not lay down the factors which need to be assessed in determining how this standard is satisfied. The CCI could provide guidance through regulations on this aspect.
- Shorter Review Timelines: The outer limit to review transactions has been shortened from 210 days to 150 days.
- Relaxation in relation to open market purchases: In a welcome move, the Bill relaxes the timeline to notify open-market purchases and allows parties to notify a transaction after completing the purchase, as long as the acquirer does not exercise any ownership or beneficial rights or interest in such securities, until CCI approval has been obtained.
Enforcement
- Targeting facilitators of cartels (including Hub-and-Spoke cartels): The Bill expands the scope of the anti-cartel provisions by expressly allowing the CCI to examine facilitators of cartels, including “hubs” in cases of hub and spoke cartels.
- Expansion of the Director General’s powers: The DG will have enhanced search and seizure powers, and will also have the power to summon ‘agents of the company’ i.e., bankers and persons employed as auditors and legal advisers of the company under investigation.
- Introduction of the Settlements and Commitments Scheme: The Bill introduces a new scheme that allows parties to enter into settlements and commitments with the CCI for entering into anticompetitive vertical agreements and abuse of dominance.A ‘settlement’ will include a party depositing a monetary penalty, whereas a ‘commitment’ will likely include a party to voluntarily offer certain behavioural remedies to the CCI, in exchange for termination of proceedings.
- Penalties based on ‘global turnover’ of parties: The CCI can now impose penalties on offending parties based on their “global turnover derived from all the products and services” as opposed to “relevant turnover”. This change may have a massive impact on multinational firms which have a global presence.
Quotes
- Pallavi Shroff, Managing Partner
“The Competition Amendment Bill, which has just been passed in the parliament, is a timely update to the law, which has been on the statute books for two decades. Whereas certain amendments are business-friendly and consistent with the Government’s “ease of doing business” mission, others may raise more uncertainty in their implementation. A lot will also depend on the regulations to be issued by the CCI to flesh out many of these broad proposals”.
- Naval Satarawala Chopra, Partner
“Changes such as the introduction of derogation of standstill obligations, framework for settlement and commitments, formal introduction of the leniency plus model, and transparency while introducing regulations, will likely be welcomed and cheered by all stakeholders. On the other hand, changes such as the introduction of deal value thresholds, expanded scope of gun-jumping, and penalties based on global turnover may raise some concerns”.
